Uma Kumari v. Assistant Commissioner, Food & Civil Supply and Others
2011-03-04
RAJIV SHARMA
body2011
DigiLaw.ai
Hon’ble Rajiv Sharma,J.—Heard Mr. Rakesh Gupta, learned Counsel for the petitioner and Mr. Rakesh Kumar Srivastava, learned Standing Counsel. 2. Brief facts of the petitioner’s case are that the fair price shop license for the village Khemnipur, Block Kaiserganj, District Bahraich was given to the opposite party No.4, which was suspended and subsequently, the said license was cancelled. Being aggrieved, he filed an appeal and the Appellate Authority while allowing the appeal on 10.6.2004 quashed the cancellation order passed by the Sub-Divisional Magistrate and the matter was remanded to the Sub-Divisional Magistrate for re-considering and deciding the matter, after providing due opportunity to the appellant for evidence, hearing and defence. In compliance of the order dated 10.6.2004, the petitioner filed a representation and after providing due opportunity, the Sub-Divisional Magistrate rejected the representation. Being aggrieved, he preferred an appeal again which was allowed vide judgment and order dated 1.4.2005. 3. Learned Counsel for the petitioner submits that the appeal has been filed without impleading the petitioner. Therefore, opportunity of hearing has not been provided to her, before passing the order. 4. Learned Standing Counsel submits that in order to distribute the essential commodities, the petitioner has been authorized, but when the statutory appeal has been decided by the Appellate Authority in favour of opposite party No.4, the matter has come to an end. Therefore, there is no illegality or infirmity in the impugned order. 5. While entertaining the writ petition, this Court vide order dated 27.5.2005 provided that fair price shop license of the petitioner would not be cancelled on the ground that license of opposite party No.4 has been restored. In this regard, it is mentioned that it is an interregnum arrangement and once the appeal has been decided in favour of the opposite party No.4, the petitioner has no locus to file the instant writ petition. Furthermore, the petitioner is not an aggrieved party. As the judicial proceedings have come to an end and the order passed by the Appellate Authority attains finality, no relief can be granted to the petitioner. 6. According to my opinion, a ‘person aggrieved’ means a person who is wrongly deprived of his entitlement which he is legally entitled to receive and it does not include any kind of disappointment or personal inconvenience. ‘Person aggrieved’ means a person who is injured or he is adversely affected in a legal sense. 7.
6. According to my opinion, a ‘person aggrieved’ means a person who is wrongly deprived of his entitlement which he is legally entitled to receive and it does not include any kind of disappointment or personal inconvenience. ‘Person aggrieved’ means a person who is injured or he is adversely affected in a legal sense. 7. It is settled law that a person who suffers from legal injury only can challenge the act/action/order etc. by filing a writ petition. Writ Petition under Article 226 of the Constitution is maintainable for enforcing a statutory or legal right or when there is a complaint by the petitioner that there is a breach of the statutory duty on the part of the authorities. Therefore, there must be a judicially enforceable right for the enforcement of which the writ jurisdiction can be resorted to. The Court can enforce the performance of a statutory duty by public bodies through its writ jurisdiction at the behest of a person, provided such person satisfied the Court that he has a legal right to insist on such performance. The existence of the said right is the condition precedent to invoke the writ jurisdiction. [Utkal University etc. v. Dr. Nrusingha Charan Sarangi and others, ( AIR 1999 SC 943 ) and Laxminarayan R. Bhattad and others v. State of Maharashtra and another, (2003) 5 SCC 413 ]. 8. Legal right is an averment of entitlement arising out of law. It is, in fact, an advantage or benefit conferred upon a person by a rule of law [Shanti Kumar R. Canji v. Home Insurance Co. of New York, ( AIR 1974 SC 1719 ) and State of Rajasthan v. Union of India and others, ( AIR 1977 SC 1361 )]. 9. In Jasbhai Motibhai Desai v. Roshan Kumar Hazi Bashir Ahmad and others, [ AIR 1976 SC 578 ], the Apex Court has held that only a person who is aggrieved by an order, can maintain a writ petition. The expression ‘aggrieved person’ has been explained by the Apex Court observing that such a person must show that he has a more particular or peculiar interest of his own beyond that of the general public in seeing that the law is properly administered.
The expression ‘aggrieved person’ has been explained by the Apex Court observing that such a person must show that he has a more particular or peculiar interest of his own beyond that of the general public in seeing that the law is properly administered. In the said case, a cinema hall owner had challenged the sanction of setting up of a rival cinema hall in the town contending that it would adversely affect monopolistic commercial interest, causing pecuniary harm and loss of business from competition. The Hon’ble Apex Court observed as under; “Such harm or loss is not wrongful in the eye of law because it does not result in injury to a legal right or a legally protected interest, the business competition causing it being a lawful activity. Judicially, harm of this description is called damnium since injuria. The term injuria being here used in its true sense reason why law suffers a person knowingly to inflict harm of this description on another, without holding him accountable for it, is that such harm done to an individual is a gain to society at large. In the light of the above discussion, it is demonstratively clear that the appellant has not been denied or deprived of a legal right. He has not sustained injury to any legally protected interest. In fact, the impugned order does not operate as a decision against him, much less does it wrongfully effect his title to something. He has not been subjected to legal wrong. He has suffered no grievance. He has no legal peg for a justiciable claim to hand on. Therefore, he is not a “person aggrieved” to challenge the ground of the no objection certificate.” 10. In Northern Plastics Ltd. v. Hindustan Photo Films Mfg. Co. Ltd. and others, [ (1997) 4 SCC 452 ], the Hon’ble Supreme Court again considered the meaning of “person aggrieved” and “locus of a rival Government undertaking” and held that a rival businessman cannot maintain a writ petition on the ground that its business prospects would be adversely affected. 11. In view of above, the petitioner has no locus standi to file the present Writ Petition under Article 226 of the Constitution of India. Even otherwise, having regard to the facts and circumstances of the case, I am not inclined to exercise our discretionary jurisdiction under Article 226 of the Constitution of India. 12.
11. In view of above, the petitioner has no locus standi to file the present Writ Petition under Article 226 of the Constitution of India. Even otherwise, having regard to the facts and circumstances of the case, I am not inclined to exercise our discretionary jurisdiction under Article 226 of the Constitution of India. 12. Accordingly, the writ petition is dismissed. Interim order dated 27.5.2005 is vacated. However, it is provided that the opposite parties are directed to permit the petitioner to lift the essential commodities upto 31.3.2011. It is made clear that the benefit of the order will not be applicable to the petitioner from 1.4.2011. (Petition dismissed) _____________